Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1887-10-04

discharge this debt was made to the
~tagent or trustee of the ,essate, and not
to the principal in life. We have al
ready said that the rifle governing
the action of a fiduciary to an estate
is entirely different from the one
which would apply to its owner in
life. In the case of the tfduciary,
he has little or no discretion, while
the other is not bound by any fimita-
ton of that character
The Judge proceeded to- fortify
his position by reference to authors
ties, among them Ward v. Smith, 7th
Wallace, and Horn ". Lockhart, 18th
Wallace. Proceeding, he says;
"The military lines of the United
States often shifted and the military
authorities of the United States were
not infrequentlY in possession of Au-
gusta county, Virginia, the place of
residence of the administratix Of the
estate. Under snch circumstances,
ample opportunity afforded to enable
both parties to settle the debts due
the estate in money called for by the
contracts. =
"It is further insisted chat Cas-
tleman's effort to pay off and dis
charge a debt under the circum-
stances was an illegal act upon his
part, and, consequently, void. II
will be observed that Castleman's ac-
tion for the most part, was volnn-
tary. There is no evidence. in the
record which discloses the fact. that
he was required to pay the notes past
and falling due. But the evidence
tends to show a feverish desire on
his part to get rid Of this indebted
ness with little expense, as speedily
as possible, and with the least incon-
venience to himself. 1t is quite APP
parent that he wanted to pay the
debt which was contracted at the
time with reference to the standard
value of money i'll the United States,
in a currency far below that value,
and, in fact, possessing only a pur-
chasing power of one-third of its APP
parent value. This attempt thus to
satisfy q debt so well secured and
when there existed no necessity for
its collection, and when he was not
required TO Nay it with any other
money than ,hat called for in the
contract, savors not only Of fraud,
but is an injustice to the heirs of the
estate, and should be disrcgarded.'
Authorities on this point are duly
cited in the opinion. The Court re-
fers to the action of the Supreme
| Court in the case of Glasgow VS..
| Lipse, in 1l7th United States, and
takes the stand that the decision of
the Court in that case has no applica-
ton, as the uses were very differ
ent. These differences Judge Jack
son points out. Proceeding he says:
I" 1t is commended that the plaintiff
should not on account of his
laches in prosecuting this case. We
do not concur in this defense. The
record discloscs the fact that the per-
sonal representatives have never
made a settlement of the estate that
they moved out of the State, and car
ried with them all papers relating to
their admistration; that the plaintiff
came out of the war financially
ruined, and was unable to institute
an action for the want of means; that
the deed of release to Castleman was
not placed on record until near the
close OF the year 1871. The action,
however. was commenced in the
spring of 1881, and if the notes had
been sued upon at law, the statute of
limitation would not have barred a
recovery of them. Courts of equity
usually follow the rule of law in
the application of the statutes. But
this action is to enforce the deed Of
trust given to C. the payments of
the purchase money. The release
was placed on the record only ten
years before the suit was COM
menced. 1t is sufficient to meet this
position that a deed of trust can be
enforced within twenty years after
the maturity of the debts secured by
it. All the notes secured are within
the time save one, and the period de-
Quoted from the operation of the
statute during the war V it.
But one more position of the de-
fence remains, that we think neces-
sary to notice, and that is, that UNI
der the circumstances were not the
fiduciarics justified in this action
OF ours every case is governed
more or less by its surroundings, but
in this case no one of the reasons as
signed exist, rs we have before shown.
We are of opinion that not only
is the plaintiff rs a matter of strict
legal right entitled to the relief
sought, but that it is simple justice.
1.-The heirs of Castleman enjoy n
landed estate of great value, which
was purchased to be paid for in the
lawful money of the United States,
and the heirs of Opie who are suing
in this case have never received the
consideration promised under the
contract of 1856. We take no no.
tice of the fact that the money re-
ceived by the executors, rs payment
of the debts due, had some value, for
the reason that we hold the payment,
rs far as the parties to this action
are concerned, was illegal and void,
and any relief the heirs of Castle
man may have, if, in fact, they have
any, is against the executor"
4 decree will he prepared in con-
formity with the views of the Court
as expressed in the opinion, refer
! ring the cause to a commissioner TO
ascertain the interests Of the plain
tiffs and the two heirs of John Opie
o,J NTrc NIoob in tho debit secured